604 PART SIX . Legal, Conceptual, and Moral issues ISSUES FOR CRITICAL REFLECTION #17 What Have Been Some Legal Challenges to the Oregon “Death with Dignity Act”? CHAPTER 18 – Assisted Suicide and Euthanasia: Intentionally Ending a Human Life 605 TABLE 18.1 Numbers of Prescriptions Written and Individuals Who Died under the Oregon Death with Dignity Act (DWDA), 1998-2010 The Oregon “Death with Dignity Act,” authorizing physician- assisted suicide, has been controversial among some Americans (Werth & Wineberg, 2005). Part of the controversy lies in the act’s having raised questions about where the authority to legalize physician-assisted suicide (and perhaps implicitly other forms of assisted suicide and euthanasia) lies at the federal level or with the states. the practice of medicine. From the outset, several groups went to court to prevent the Number of Prescriptions Written Under the DWDA 2010 2009 Oregon legislation. However, in November 2001 am be to make it difficult, if not impossible, top action, and in April 2002 the same judge made the district court judge issued a temporary injuncte injunction permanent, ruling that the Attomey Gests not have the authority to interfere with state laws In May of 2004, a three-judge panel of the With those decisions. The panel’s ruling held that these implementation of the act. In 1997, the U.S. Supreme Court Circuit Court of Appeals rejected the governments “Ashcroft Directive” cannot be enforced because te laws that provide for physician-assisted suicide. Meanwhile, the clear language of the Controlled Substances o contrary to the legislative intent of Congress, and disse the limits of the Attorney General’s lawful authority, August 2004 a majority of that federal appeals com 25 full-time judges voted to refuse to reconsider the Subsequently, the U.S. Supreme Court ruled 6-3 17, 2006, that the Attorney General does not have te authority to regulate medical practice, a responsibility the states and that the Oregon DWDA does not violate ruled that although there is no “right to die” in the U.S. Constitution, states have the constitutional right to make 2008 2007 2006 2005 2004 2003 2002 2001 2000 1999 1998 Total 96 95 88 85 65 64 60 68 58 44 39 33 24 819 Number of individuals Who Ingested Lethal Medications and Died 65 59 60 49 46 38 37 42 38 21 27 27 16 an attempt to repeal the law was placed on the ballot in Oregon in November of 1997, only to be rejected by a vote of 60 to 40% On November 6, 2001, the Attorney General of the United States announced that Oregon’s Death with Dignity Act violated federal drug laws. Accordingly, he issued a directive authorizing the government to cancel the federal license of physicians to prescribe what are called controlled 525 substances or “scheduled drugs if they are used to provide intent of Congress when it passed the 1970 Controle assistance in dying. The practical effect of that action would Substances Act to regulate illicit drug dealing and te choose Note: Individuals who received prescriptions under the DWDA may have died of their illnesses How before they could act on those prescriptions; some received a prescription in one year but did not act on it immediately to ingest lethal medications and thus died in a subsequent year. samma om Source: Oregon Department of Human Services, 2011; http://public.health.oregon.gov/ Provider Partner Resources/Evaluation Research/Deathwith Dignity Act/Pages/index.aspx. vody bar dows end-of-life care options more effectively. In one study, Oregon physicians reported that, since the passage of the Death with Dignity Act in 1994, they had made efforts to improve their knowledge of the use of pain medications in the terminally ill, to improve their recognition of psychiatric disorders such as depression, and to refer patients more frequently to hospice. (Oregon et e anilor voor Department of Human Services, 2005, p. 17) have taken advantage of PAS in Oregon were enrolled in hospice care, died at home, and had some form of health insurance. Over the years of the implementation of the DWDA, the leading concerns of those who completed an act of PAS in Oregon have been reported to include loss of autonomy, a decreasing ability to participate in activities that made life enjoyable, and loss of dignity. Fear of intractable physical pain has not seemed to be a central motivation in these actions. Beyond this, it has been suggested that the availability of PAS may have led to efforts to improve end-of-life care in Oregon through other modalities. For example, A request for PAS can be an opportunity for a medical provider to explore with patients their fears and wishes around end-of-life care, and to make patients aware of other options. Often once the patient’s concerns have been addressed by the provider, he or she may choose not to pursue PAS. The availability of PAS as an option in Oregon also may have spurred Oregon doctors to address other PROSPECTS FOR THE FUTURE DorThe issues discussed in this chapter are unlikely to be easily resolved or to con bomanis disappear in the future. For example, some forms of euthanasia or assisted no suicide are legal in Belgium, Luxembourg, and Switzerland. In the United States, a Death with Dignity Act was passed in November of 2008 in Washington State (see http://www.doh.wa.gov/dwda/) and a state supreme court ruling in Montana legalized certain forms of assisted suicide in 2009. In addition, as medical technology advances, more and more people may find themselves in situations wherein they seriously question the quality of life offered by continued medical interventions, either for themselves or for others about whom they care. Also, health care providers may find 590 PART SIX • Legal, Conceptual, and Moral Issues masthank you CHAPTER 18. Assisted Suicide and Euthanasia: Intentionally Ending a Human Life 591 euthanasia is morally acceptable, so too must active euthanasia be morally acceptable. They also believe that if active euthanasia is morally unacceptable, NANCY BETH CRUZAN MOST LOVED DAUGHTER – SISTER – AUNT BORN JULY 20.1957 DEPARTED AAN JE 1983 AF PEACE DEC 26, 1990 ourtesy of the Center for Practical Bioethics then passive euthanasia must be morally unacceptable. Arguments in Support of Intentionally Ending a Human Life Prevention of Suffering An argument to support the moral acceptability of assisted suicide and euthanasia is that suffering is evil. Therefore, one func- Nancy Cruzan’s grave marker. distinction between extraordinary and ordinary means is often employed in This brings the discussion back to issues associated with euthanasia. The the following way. Many would hold that not to begin to use or to stop about euthanasia. In this view, questions about euthanasia arise only when using extraordinary means of treatment is not to be engaged in decisions who argue in favor of euthanasia will suggest that in some situations there is one is trying to decide whether to use ordinary means of treatment. Those no moral requirement to use ordinary means of treatment. Those who argue against euthanasia will suggest that in this situation (or in all situations) mor- ally one must use the ordinary means of treatment under discussion; other. wise, one would be intending to end a human life. DECIDING TO END A HUMAN LIFE: MORAL ARGUMENTS We turn next to issues relating to the morality of intentionally ending a human life. Some have argued that intentionally doing something to end someone’s life and intentionally not doing something to sustain that life ought to be distin guished morally. For instance, many people hold that active euthanasia is morally unacceptable. Their argument is that in active euthanasia the agent (the cause) of death is a person, the agent intends to bring about the death, and it is morally unacceptable for one person to deliberately kill another in the circumstances under consideration in this chapter). However, many of these same people argue that passive euthanasia can, under some circumstances, be morally appropriate. Their argument here is that in passive euthanasia the agent (the cause) of death is a disease process—no person directly causes the death of another or intends to do so—and thus this is morally acceptable. Not everyone accepts these claims. Some argue that in either case, another human being is involved, and whether that person commits an act to cause the death or omits an action that could prevent the death is morally irrelevant. In either case, so this argument goes, that person is involved in the occurrence of the death and is aware that death may likely follow from the action or omission whatever he or she may be intending, so the two sicing tion of caregivers is to prevent and, if possible, end suffering . Hence, to achieve such a goal, actions involving assisted suicide and euthanasia would be permissible. Again, one could take this argument to its extreme and urge that all suffering is evil and therefore that one ought always to strive to end Sing physical exercise as a means to health (no pain, no gain”) to the realiza- any suffering-but probably few would hold this view. From slogans support- Stion that success in most valued endeavors (such as intellectual growth, emotional maturity, artistic creativity) involves some suffering, the conclusion seems to follow that some suffering can have consequences that are good. white automatically be taken as something to be eliminated altogether. Thus, one Therefore, at least as a means to some desired good end, suffering cannot is forced to evaluate particular instances of suffering rather than to issue blanket condemnations (Cassell, 1991; Nabe, 1999). This conclusion, of Top course, may leave us uncertain about what to do in a particular instance. bogor Enhancement of Liberty Another argument sometimes used to support el assisted suicide and euthanasia arises based on the value placed on human bere liberty. Most Americans believe that liberty is good. That is, they value being free from external coercion when making decisions about themselves and dan ding their lives. In other words, many people value autonomy-a word that liter- Storhally means being able to make law (nomos) for oneself (auto) (Childress, 1990). Such individuals disvalue interference from others in matters they believe to be their own affair. This position supports the rights of individuals arabito decide what to do about their own suffering. In this view, if someone so it hobe disvalues the suffering he or she is experiencing and that individual prefers that his or her life end, that decision ought to be supported. In short, those Do who value autonomy must seriously consider the view that it is the suffering La person’s right as an autonomous agent to make that decision, and others Bought not to interfere with it (see Kaplan, 1999; Werth, 1999b). This is the o view that Dr. Kevorkian-correctly or incorrectly-consistently stressed. There are two difficulties with accepting this argument as definitive. One is that it presupposes that one can tell when someone is acting autonomously. thedad However, someone who is experiencing severe pain or emotional trauma may not be completely free of coercion. The pain or emotional suffering itself may be so affecting the person that any decision made under its influence is not, in ano fact, autonomous. It is not always easy to decide about this. However, one posi- altion to guard against is the belief that such pain or trauma is always a coercive 300 factor in someone’s ability to make rational decisions. Even with severe suffer- ing, it may be possible that the person is still an autonomous agent. Individuals involved in the lives of people who are experiencing severe suffering must find tions are morally equivalent. People who think this way believe that if passive 588 PART SIX . Legal, Conceptual, and Moral Issues unpredictable CHAPTER 18. Assisted Suicide and Euthanasia: Intentionally Ending a Human Life 589 ISSUES FOR CRITICAL REFLECTION #16 Pope John Paul II on Artificial Feeding for Individuals in Permanent Vegetative States outcomes, some of which make the person worse off than he or she was before. The side effects, for instance, of a treatment might produce more so fering than the person was undergoing before the treatment began. An extraordinary means of treatment might even produce effects that are wote one might have little confidence that they will in fact be helpful in dealing than the disease. Since the outcome of using such means is either with the person’s symptoms or disease. That is, the actual effectiveness of an extraordinary means of treatment may be uncertain, too. treatment in one situation could be extraordinary in another. There is no li independently of an individual person’s context. What might be ordinary What counts as ordinary and extraordinary means cannot be determined in this moral sense and another list of treatments that can be determined to of treatments that can-purely on their own be determined to be ordinary be extraordinary. Whether a specific treatment is ordinary or extraordinary extraordinary means with an empirical distinction between that which is too also be morally ordinary in the context of this discussion. For example, the tine or familiar and that which is not. What is medically ordinary may not use of ventilators and respirators is quite common in many hospitals and according to the ordinary/extraordinary distinction. Similarly, in recent years, long-term care facilities, but that does not determine their moral status various forms of artificial feeding have become common, especially for indivi- duals in various forms of temporary coma or in the more serious condition described as a permanent or persistent vegetative state (PVS). Artificial nutti must be decided in terms of a particular person’s situation. It is important not to confuse this moral distinction between ordinary and On March 22, 2004, Pope John Paul I spoke to an international congress on life-sustaining treatments and preserving life, not a medical act.” As a result, the pope the vegetative state. In that speech, the pope first spoke claimed that such administration is always morally required. of the importance of arriving at a correct diagnosis of such Two American bioethicists (Shannon & Walter, 2004) a state in any individual case. Then, arguing that individuals observed that this statement represents “a major reversal of in these states retain their “intrinsic value and personal the moral tradition of the Catholic church. Further, these commentators pointed out that the moral claim as to what is dignity,” he went on: obligatory or required seems to be based on an unclear This important congress … is dealing with a very distinction between “natural” and “artificial treatments. One significant issue: the clinical condition called the of the most difficult issues in discussions of the morality of vegetative state…. The person in a vegetative state, in treating persons in these states lies in determining just what fact, shows no evident sign of self-awareness or of counts as natural versus clinical or medical treatment. This awareness of the environment, and seems unable to distinction in turn has been related—often in tenuous interact with others or to react to specific stimuli…. ways-to the moral distinction between ordinary and Moreover, not a few of these persons with appropriate extraordinary treatments. As Shannon and Walter wrote: treatment and with specific rehabilitation programs, have been able to emerge from a vegetative state. The primary determinant of whether the intervention is morally ordinary or extraordinary is not how the On the basis of these assertions, the pope went on to kind of intervention—is classified. Historically , the deter- intervention whether a medical therapy or some other discuss the moral ramifications of treating persons in a minant has been the effect on the patient. Thus the fact permanent or persistent vegetative state. He asserted that that some intervention is considered a “natural means” … “the administration of water and food, even when provided does not determine the moral or obligatory status of the by artificial means, always represents a natural means of intervention. (pp. 9-10) tion and hydration for individuals in persistent vegetative states is a form of medical treatment commonly delivered as special liquid formulas through feeding tube implanted directly into the stomach. Many bioethicists and moral theologians have suggested that such medical interventions may be a may become (after sufficient time has enabled specialists to confirm the diag. nosis of PVS) examples of extraordinary means. If so, in this view their removal could become morally optional (see, however, Issues for Critical Reflection #16). But again, that would need to be assessed on an individual basis with full understanding of the particular situation. These issues can be seen historically in three celebrated cases: In April of 1975, Karen Ann Quinlan at the age of 21 slipped into a comatose state, apparently as a result of ingesting alcohol and some tran- quilizers at a party; eventually, Karen Ann’s parents were permitted by the New Jersey Supreme Court to have a respirator (which they regarded as having become an extraordinary intervention that would not restore Karen to health) removed on May 22, 1976. However, they did continue intravenous feeding and regular visits with her. Karen did not die until June 11, 1985 (see Colen, 1976; Quinlan, Quinlan, & Battelle, 1977). In January of 1983, Nancy Cruzan, at the age of 26, experienced severe brain damage from a lack of oxygen following an automobile accident after a lengthy court battle that reached both the Missouri and the U.S. Dodo nizace vitae Supreme Courts, Nancy’s parents and sister were permitted to act on her ng and slam ve behalf to remove artificial nutrition and hydration delivered through a probado de guide tube implanted directly into her stomach. She died in a matter of days on done list December 26, 1990 (see Colby, 2002). bort to In February of 1990, Terri Schiavo at the age of 26 entered into the do situation described in the vignette near the beginning of this chapter. She died on March 31, 2005. To be suma alds. Note that none of these young women had completed a written advance admits directive (a document not even available to Karen Ann Quinlan in 1975) to Damos no communicate her wishes about end-of-life care. mai drabad In general, then, if the therapy proposed for use or already in use is an El noto extraordinary means of treatment according to the criteria listed here, then belly most moralists agree that there is no moral obligation to use it. Individuals may choose not to begin (withhold) the use of such a therapy, or they may choose to El terminate (withdraw) its use with no moral culpability attached to that decision. 578 PART SIX . Legal, Conceptual, and Moral Issues Terri Shiavo (1963-2005). appellate court passed the issue directly to the Florida Supreme Court. In August of 2004, arguments were heard by that court, which ruled unani- mously in September that Terri’s Law was an unconstitutional violation of the separation of powers in our governmental system. The same court subse. of Florida requested a review of that decision by the U.S. Supreme Court, quently refused to reconsider that decision. In December 2004, the governor but that request was turned down without comment in January 2005. On February 25, 2005, the original local judge gave permission to remove the stomach tube. That was done on March 18. Subsequently, the U.S. Congress passed and President Bush signed a bill to allow a federal court to review the case. In response to a request from Terri Schiavo’s parents for such a review, a federal district judge declined to order the stomach tube reinserted. That ruling was sustained by the Eleventh U.S. Circuit Court of Appeals, after which the U.S. Supreme Court again declined to hear the case. Additional local court rulings prohibited the state of Florida from reinserting the stomach tube or taking Terri into state custody. The Florida Supreme Court refused to overturn these rulings, and the federal district court, the Eleventh U.S. Circuit Court of Appeals, and the U.S. Supreme Court once again declined to intervene. Terri Schiavo finally died on March 31, 2005, more than 15 years after the heart attack that had begun her long saga. Her death has been followed by a flood of books and other publications by her husband, her family of origin, lawyers, bioethicists, and other commentators (e.g., Caplan, McCartney, & Sisti, 2006; Clift, 2008; Colby, 2006; Eisenberg, 2005; Gibbs & DeMoss, 2006; Gostin, 2005; Lynne, 2005; Schiavo Case, 2005; Schiavo & Hirsh, 2006; Terri’s Family , Schindler, Schindler, Vitadona, & Schindler, 2006; Werth, 2006). CHAPTER 18 Assisted Suicide and Euthanasia: Intentionally Ending a Human Life 579 SITUATING THE ISSUES situations intentionally to end a human life. People in our society may be led The issues addressed in this chapter concern decisions made in certain specific to or compelled to make such decisions as a consequence of advances used to extend the length of human lives. For example, beginning in the second half of the 20th century, modern technology has kept many individuals alive who clearly would have died in earlier times. Such persons include those unable to breathe on their own and many persons with severe brain trauma or with progressive debilitating diseases who would have died when respirators or El nasogastric feeding tubes were unavailable. In addition, chemotherapy, radia- tion therapy, organ and tissue transplants, and many other techniques have extended the lives of many persons. This is a widely admired outcome of modern medicine. However, these technologies not only have made possible the continua- tion of someone’s living but sometimes have increased the depth, length, and degree of that individual’s suffering. In some instances, the life continued by at these techniques has been felt by some to be demeaning and demoralizing as DOT2 well as filled with suffering. When contemporary therapies are unable to effectively handle these aspects of people’s dying, some have argued that De death is to be preferred to continuing such a dying. How often this issue needs to be confronted is a matter of dispute. Hospice philosophy (see Chapter 8) would argue that inadequate care is being provided when someone experiences a demeaning dying process filled with suffering. That is, hospice philosophy suggests it is seldom necessary that anyone with a com al life-threatening illness should be faced with the question of whether death is to 12be preferred to this present existence. That may be true. However, hospice care stabiri is not (yet) available to everyone who is dying, and there are a (perhaps small) number of situations when even hospice or palliative care is unable to success- fully handle the suffering being experienced. In these situations, the question of the desirability of choosing to end a life may still arise. The basic question examined in this chapter is: Is it ever appropriate to find choose to end rather than to continue a human life? If this question is answered affirmatively, then other questions arise out of that response. These da bo questions include: In what way is it appropriate to become dead, and who at may properly be involved in the process of someone’s becoming dead? In Vaddressing such questions, we look for some basis on which they might an appropriately be answered, and we enter a path that compels us to think explicitly about the morality of intentionally ending a human life. In the United States, questions such as these have been most closely asso- ciated with assisted suicide and euthanasia. We discuss these issues here because they have become matters of intense debate in our society in recent years and because they are often associated with a degree of conceptual and la moral confusion that hinders such debate. Our principal aim in this chapter is to clarify the concepts of assisted suicide and euthanasia, and to help sort out arguments made on behalf of or against such ways of deciding to end a human life. CHAPTER 18 CHAPTER 18 • Assisted Suicide and Euthanasia: Intentionally Ending a Human Life 577 TERRI SCHIAVO RESPECT COPLE OREGO death w DIGNI ASSISTED MY LIFE www.dwd RESPECT PEOPLE Etek THE WILL OF THE AFF TONE Com MY DEAT SUICIDE AND EUTHANASIA: INTENTIONAL ENDING A HUMAN LIFE OBJECTIVES OF THIS CHAPTER • To examine conceptual and moral issues related to the intentional ending of a human life To define assisted suicide and euthanasia and to distinguish them from other modes of intentionally ending a human life • To differentiate assisted suicide and euthanasia by considering agency (who acts?) and intent (what goals guide decision making?) To explore the morality of assisted suicide and euthanasia by examining philosophical arguments and the perspectives of several world religions on these topics To describe social policies on these subjects in the Netherlands and in the state of Oregon On February 25, 1990, Terri Schiavo was 26 years old and had been married to Michael Schiavo for 6 years. She had not signed either a living will or a durable power of attorney. On that day, Terri’s heart stopped (apparently as a conse- quence of an eating disorder), and her brain was deprived of oxygen. From that date forward, Terri was in a coma, and some (including several physicians) believed that she was in a persistent vegetative state. The National Institute of Neurological Disorders and Stroke defines a persistent vegetative state as one in which persons “have lost their thinking abilities and awareness of their surroundings, but retain noncognitive function and normal sleep patterns…. Spontaneous movements may occur, and the eyes may open in response to exter- nal stimuli. They may even occasionally grimace, cry or laugh” (Anonymous, 2003, p. 4A). Terry showed many of these symptoms, and that fact eventually led to a legal battle between her husband (who was her court-appointed legal guardian) and her parents. On one hand, after several years of rehabilitative efforts, Michael Schiavo came to believe that Terri would never recover. He said she told him before her heart attack that she would not want to be kept alive by artificial means. On that basis, since 1998 he repeatedly asked a local circuit court to order the removal of a tube that had been surgically implanted in her stomach to provide hydration, nutrition, and medications. On the other hand, Terri’s parents and siblings (who believed that she still had some cognitive 20 como function and at least limited potential for improved quality of life) repeatedly du blocked Michael’s requests by various legal means. In February of 2000, a Florida circuit court judge ruled that the esque implanted tube (technically, a gastrostomy tube, but commonly called 2005 a “feeding tube”) could be removed. That was done on April 24, 2001. However, on April 26, 2001, a different Florida circuit court judge ordered bebelum physicians to reinstate the stomach tube while Terri’s parents pursued a law- Inoltsuit against Michael (Ulferts & Lindberg, 2003, p. 1A). In November of o2002, the first judge again ordered the tube removed, but stayed implementa- da duela betion of his order until a state appeals court upheld it and the Florida Supreme Yo D20 Court declined to review the decision of the appeals court. The tube was then er det bare removed for a second time on October 15, 2003. crison A group of opponents to this action and supporters of the parents’ view ad began a round-the-clock vigil outside the hospice facility where Terri was or bu receiving care. At this point, after receiving many calls and e-mails from Samo Tatue around the country opposing the removal of Terri’s stomach tube, the Florida legislature stepped in and very quickly (without holding the usual hearings or aniram taking testimony from experts) passed “Terri’s Law.” This bill gave the negde bi governor of Florida, Jeb Bush, the authority to order the stomach tube to be brindand told reinserted; that was done on October 21, 2003. (A poll in December 2003 Do showed that 65% of Florida voters were opposed to this law (Smith, 2003, de pp. 1A, 21A). However, a set of disability rights groups and others supported on the governor’s action (Times Staff Writer, 2004, p. 337.) blad In May of 2004, a Florida circuit court judge ruled Terri’s Law to be a violation of the Florida constitution. The governor appealed, but the Florida 76
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